735 F.3d 735 (7th Cir. 2013), 13-2559, Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc.

Docket Nº:13-2559.
Citation:735 F.3d 735, 108 U.S.P.Q.2d 1630
Opinion Judge:POSNER, Circuit Judge.
Party Name:KRAFT FOODS GROUP BRANDS LLC, Plaintiff-Appellee, v. CRACKER BARREL OLD COUNTRY STORE, INC., et al., Defendants-Appellants, and John Morrell & Co., Intervening Defendant-Appellant.
Attorney:Barbara Solomon, Fross, Zelnick, Lehrman & Zissu, New York, NY, for Plaintiff-Appellee. Daniel P. Albers, Barnes & Thornburg LLP, Chicago, IL, for Intervening Defendant-Appellant, Defendants-Appellants.
Judge Panel:Before POSNER, ROVNER, and HAMILTON, Circuit Judges.
Case Date:November 14, 2013
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 735

735 F.3d 735 (7th Cir. 2013)

108 U.S.P.Q.2d 1630

KRAFT FOODS GROUP BRANDS LLC, Plaintiff-Appellee,

v.

CRACKER BARREL OLD COUNTRY STORE, INC., et al., Defendants-Appellants,

and

John Morrell & Co., Intervening Defendant-Appellant.

No. 13-2559.

United States Court of Appeals, Seventh Circuit.

November 14, 2013

Argued Sept. 9, 2013.

Page 736

Barbara Solomon, Fross, Zelnick, Lehrman & Zissu, New York, NY, for Plaintiff-Appellee.

Daniel P. Albers, Barnes & Thornburg LLP, Chicago, IL, for Intervening Defendant-Appellant, Defendants-Appellants.

Before POSNER, ROVNER, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge.

This is a trademark infringement suit (see Lanham Act, 15 U.S.C. §§ 1051 et seq. ) brought by Kraft against Cracker Barrel Old Country Store (we can disregard the other parties). The district judge granted Kraft a preliminary injunction against the sale by Cracker Barrel Old Country Store of food products to grocery stores under the name Cracker Barrel, which is a registered trademark of Kraft. To prevent confusion (an especially apt goal in a trademark case), we'll call Cracker Barrel Old Country Store " CBOCS," as do the parties.

Kraft is a well-known manufacturer of food products sold in grocery stores. Its products include a wide variety of packaged cheeses, a number of them sold under the trademarked " Cracker Barrel" label. Kraft has been selling cheese in grocery stores under that name for more than half a century. Thousands of grocery stores carry Kraft cheeses bearing that label. Kraft does not sell any non-cheese products under the name Cracker Barrel.

Page 737

CBOCS is a well-known chain of low-price restaurants (it opened its first restaurant in 1969), 620 in number at last count, many of them just off major highways. Upon learning recently that CBOCS planned to sell a variety of food products (not including cheese, however), such as packaged hams, in grocery stores under its logo, " Cracker Barrel Old Country Store" (the last three words are in smaller type in the logo), Kraft filed this suit. It claims that many consumers will be confused by the similarity of the logos and think that food products so labeled are Kraft products, with the result that if they are dissatisfied with a CBOCS product they will blame Kraft.

Kraft acknowledges that a trademark does not entitle its owner to prevent all other uses of similar or even identical marks. " It would be hard, for example, for the seller of a steam shovel to find ground for complaint in the use of his trade-mark on a lipstick." L.E. Waterman Co. v. Gordon, 72 F.2d 272, 273 (2d Cir.1934) (L. Hand, J.). And likewise identical marks used on similar products sold through different types of sales outlet might cause no confusion— indeed Kraft does not question CBOCS's right to sell the food products at issue under the name Cracker Barrel in CBOCS's restaurants, in CBOCS's small " country stores" that adjoin the restaurants, or by mail order or on the Web. It objects only to their sale in grocery stores. The district judge found the likelihood of confusion, and of resulting harm to Kraft, from CBOCS's selling through such outlets sufficient to warrant the grant of a preliminary injunction. These are factual determinations, which bind us unless clearly erroneous, Eli Lilly & Co. v. Natural Answers, Inc., 233 F.3d 456, 462 (7th Cir.2000); Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423, 1427-28 (7th Cir.1985)— a reinforcing consideration being the need for expeditious determination of whether to order preliminary relief. The district judge must act with a certain haste, and we must hesitate to nitpick his findings and casually remand for further proceedings bound to cause additional delay. Kraft moved for a preliminary injunction on March 8 of this year; it was granted on July 1; it is now November. The grant of the preliminary injunction followed extensive discovery, the presentation of expert evidence, and some live testimony. Of the allegedly infringing CBOCS products, only the spiral hams had been shipped to grocery stores before the preliminary injunction was issued; and by then the stores had sold them all.

Below, copied from CBOCS's website, is a picture of the logo that appeared on CBOCS food products shipped to grocery stores.

(Image Omitted)

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Up close at least, it looks different from the label " Cracker Barrel" that appears on Kraft's cheeses. Yet even if a Cracker Barrel cheese and a CBOCS ham (or other food products) were displayed side by side in a grocery store, which would make a shopper likely to notice the difference between the labels, the words " Cracker Barrel" on both labels— and in much larger type than " Old Country Store" on CBOCS's label— might lead the shopper to think them both Kraft products.

Most consumers of Cracker Barrel cheese must know that it's a Kraft product, for the name " Kraft" typically though not invariably appears on the label, as in the following picture:

(Image Omitted)

Kraft is concerned with the potential for confusion of shoppers at the 16,000 or so grocery stores (or similar retail outlets) that sell Cracker Barrel cheeses...

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